What are the Requirements for a Divorce in Arizona?
I often tell my new clients that one of the unfortunate aspects of practicing family law is that I get to meet a lot of really wonderful people in some of the worst and darkest times of their lives. After all, people do not generally get married with the idea they will later divorce. For most of us, our wedding day ranks up there with the greatest days of our lives. It is the day we commit to the person we love to honor and cherish them forever. Unfortunately, for many people, the happily ever after fairy tale does not have the happy ending hoped for on their wedding day. Love and hope is often replaced by anger and uncertainty. Many people find themselves afraid of the future and not knowing what to expect when their marriage becomes unraveled.
And so it is with this setting that so many people come to my office seeking advice about divorce. Many people are seeking reassurance and an understanding of what to expect while dealing with the inevitable pain that divorce brings. For others, the divorce cannot come soon enough. Some choose to pursue the divorce and others have no choice because their spouse is seeking the divorce. Regardless of the individual circumstances, the question I am always asked is “how do I get a divorce in Arizona? Or, “where do I begin to get a divorce?”
To start with, it is important to understand that before an Arizona family court can grant a divorce, the court must be sure that it has the authority, or jurisdiction to grant a divorce. Thus, under Arizona law, there are a few jurisdictional requirements that must be met before the Court can ultimately grant a divorce. The very first step, however, is to file a Petition for Dissolution of Marriage. The Petition for Dissolution of Marriage is your ticket into family court and advises the court as to your position on the vital issues in the divorce case such as: division of property and debts, child related issues such as legal decision-making, parenting time and child support and your position on spousal maintenance or alimony.
The Petition for Dissolution also includes a jurisdictional statement that informs the court that you qualify for a divorce in Arizona. These jurisdictional requirements (or legal requirements) for a divorce in Arizona can be found in A.R.S. §25-311 and include the following:
a.At least one party (husband or wife), at the time the divorce was filed was domiciled in the State of Arizona, or was stationed in the State of Arizona while a member of the armed services, for at least 90 days prior to the date the Petition for Dissolution was filed.
This means that at least one party to the divorce has to have lived in the State of Arizona for at least 90 days prior to the date the Petition for Dissolution is filed. It is not uncommon for potential clients to call me from other states and ask if they can file for divorce in Arizona. The answer is yes, if your spouse that you are seeking divorce from has been living in Arizona for at least the past 90 days. Another common scenario I often see is a party who has recently moved to Arizona. If you move to Arizona and your spouse does not already live here, you cannot file for divorce in Arizona until you have lived here at least 90 days.
b.The party filing the Petition for Dissolution must affirm that the conciliation provisions of A.R.S. §25-381.09 either do not apply or have been met.
The State of Arizona supports marriage and discourages divorce. The State deems it good for society and for the State for couples who get married to stay married if at all possible. As such, the State offers services for couples who are contemplating divorce to try to save their marriage and avoid divorce altogether. These are not mandatory services. Many people who come to my office seeking a divorce have already tried private counseling to try to save their marriage. Conciliation Services is simply another option to try to save your marriage. For purposes of the Petition for Dissolution of Marriage; the person filing the Petition must state in the Petition that he or she either has participated in Conciliation Services or that he or she does not think such services will help save the marriage.
c.The party filing the Petition must avow to the Court that he or she believes the marriage is irretrievably broken, or if it is a covenant marriage that the requirements of A.R.S. §25-903 have been met.
Arizona is a no-fault state. This means that Arizona family courts do not care what your reason is for seeking a divorce. A party seeking a divorce in Arizona must simply state that he or she feels the marriage is irretrievably broken (permanently broken) and cannot be saved. That’s it. The provision about a covenant marriage does not apply to the vast majority of people. A large majority of married couples in Arizona do not have a covenant marriage. Covenant marriages will be addressed in more detail in a later blog.
In addition to the above jurisdictional requirements, the Petition must also contain the following information:
a.The birth date, occupation, social security number if a duty of support exists or may exist, and an address for each party and the length of domicile in the State of Arizona for each party;
b.The date and place of marriage and whether the marriage is a covenant marriage;
c.The names, birth dates, social security numbers and addresses of all living children, natural or adopted, common to the parties and whether the wife is pregnant;
d.The details of any agreements between the parties as to child support, custody and parenting time of the children and maintenance of the spouse (alimony);
e.The relief sought. This simply means that the party filing the divorce must tell the court how he or she wants the court to rule on the issues that exist in the case.
A Petition for Dissolution of Marriage in Arizona must be verified. That is to say that the person filing the Petition must state that he or she has read the Petition for Dissolution and that everything stated in the Petition is true and accurate to the best of that person’s knowledge. The verification (signature of the party) is typically notarized, thus, the Petition is filed under oath by the party filing the Petition.
The Petition for Dissolution is really the first step in any Arizona divorce. It must be complete and thorough enough for the Court to review it and be assured that all jurisdictional and other legal requirements have been met as outlined above. It also must be clear and thorough enough that the other party can read it and know what you are asking the Court to do, even if he or she does not agree with your position on the issues.
Divorce is not pleasant and the truth is that the legal aspects of divorce can be difficult and confusing and only add further to your stress. Every case is different in terms of the issues and complexity of the case. What is not different is the starting point. It can be vital to your case to properly prepare and plead your divorce case. Divorce is stressful enough. I always recommend at least consulting with an attorney before filing for divorce to make sure you understand all of the issues that will need to be addressed and to assure that your divorce pleadings (legal paperwork) is prepared and filed correctly with the Court.
DOES IS MATTER WHY I WANT TO GET DIVORCED?
Over the years I have consulted with hundreds and hundreds of people about divorce. In nearly every divorce consult I do I explain that in the typical Arizona divorce there are usually three or four primary issues the family court must address, one of which is the actual dissolution of the marriage. This part of the consult almost always leads to the person I am consulting with to share the reason he or she is seeking a divorce from their spouse. It probably goes without saying that I have heard just about every reason you can imagine why a person would seek a divorce. The most common reasons for divorce are not hard to imagine: infidelity, drug and alcohol abuse, physical abuse, financial stress, involvement in pornography or just simply growing apart. This is certainly not an exhaustive list.
The issues listed above would understandably test the marriage vows of most of us. These types of issues have a profound impact on marriages and all family members. In many cases the impact can be devastating emotionally, physically and financially. For this reason, most people are surprised when I tell them that the family court judge will not really care about why they want to get divorced. A typical response to this statement might be: “how can that be?” “Why doesn’t the court care that my spouse has been lying and cheating and having an affair?” These are all good and fair questions. In some cases the potential client may even believe that because their spouse has been unfaithful or using drugs they may even be entitled to more from the divorce than he or she might otherwise be entitled; almost like damages for their pain and suffering. I think these feelings are natural and understandable. But, the truth remains that in Arizona, the reason for the divorce does not matter for purposes of the family court judge granting a divorce in Gilbert AZ.
The simple explanation is that Arizona is a “no-fault” divorce state. A “no-fault” divorce is a divorce where the party seeking the dissolution of the marriage does not need to show any wrongdoing by either party in order for the court to grant the divorce. In Arizona, a family court can grant a divorce so long as one party states that his or her marriage is irretrievably broken and so long as that party meets the other jurisdictional requirements for divorce in Arizona, which I have discussed in more detail here. The fact that your spouse is abusing drugs or has been unfaithful does not increase your ability to get in Arizona. That is not to say that those issues do not have any impact at all in the divorce proceedings; it is just not necessary that you demonstrate to the court that your spouse has engaged in these activities in order for the court to grant you your divorce.
So if the reason for divorce does not matter, it begs the question: in what circumstances would drug abuse, infidelity or other issues have any bearing in your divorce case? These issues are not to be ignored. They can certainly have a tremendous impact on other aspects of your case. For example, the fact that your spouse may be a drug addict will likely have a significant impact on how much parenting time or legal decision-making authority he or she will get with the minor children. The fact that a spouse spent community funds on an affair could have an impact on the family court’s decision regarding the division of community property. Spending community funds on an affair might be considered waste and may entitle the non-cheating spouse to more money when it comes time to divide the remaining community assets.
So, just because “no-fault” eliminates the need to demonstrate wrongdoing to get a divorce; it does not necessarily mean a spouse who has made bad choices that have resulted in the decision to get a divorce has zero consequences. Be open and honest with your attorney so he or she can properly evaluate what impact those bad decisions may have on your case and don’t be too concerned when your attorney tells you that the judge may not necessarily care why you are getting a divorce.
One of the more common concerns I encounter with new or prospective divorce clients is a real fear that their soon to be ex-spouse will dispose of community assets before the court has a chance to divide the property. Arizona is a community property state. In general, this means that any asset that you and your spouse accumulate during the marriage (i.e., house, retirement account, savings account, etc.) is considered community property and each spouse is entitled to a 1/2 interest in the property. In some cases, particularly those involving long marriages, the community assets can be substantial and it may take quite some time to determine how the assets should be equitably divided. In the meantime, what if anything can be done to prevent one spouse from selling or taking community assets before your divorce case can be resolved either by settlement or by the family law court?
THE PRELIMINARY INJUNCTION
When you or your family law attorney file your Arizona divorce case, the Clerk of the Court is required to issue a preliminary injunction that prohibits both parties from taking certain actions while the divorce is still pending. An injunction is a court order. This means that if either party does anything forbidden by the Preliminary Injunction, he or she is violating a court order and may be subject to sanctions from the family law judge. One of the primary purposes behind issuing this automatic preliminary injunction is to prevent either spouse from disposing of community assets until either the parties agree in writing how to divide or dispose of an asset, or the court issues an order regarding the disposition of the asset.
WHAT DOES THE PRELIMINARY INJUNCTION PROHIBIT?
The Preliminary Injunction, which can be found in A.R.S. 25-315(A)becomes effective as soon as it is issued by the Clerk of the Court and is served on the non-filing spouse. The injunction includes specific orders applicable to both parties including the following:
1. You may not hide earnings or community property from your spouse;
2. You may not take out a loan on any community property;
3. You may not sell the community property or give it away to someone, UNLESS you have the written permission of your spouse or written permission from the court. The law allows for situations in which you may need to transfer joint or community property as part of the everyday running of a business, or if the sale of community property is necessary to meet the necessities of life, such as food, shelter, or clothing, or court fees and attorney fees associated with this action. If this applies, you should see a lawyer for help, AND
4. You may not harass or bother your spouse or children, AND
5. You may not physically abuse or threaten your spouse or the children, AND
6. You may not take the minor children, common to your marriage, of of the State of Arizona for any reasons, without a written agreement between you and your spouse or a Court Order, before you the the minor out of the State.
7. You may not remove, or cause to be removed, the other party or the minor children of the parties from any existing insurance coverage, including medical, hospital, dental, automobile and disability insurance. Both parties shall maintain all insurance coverage in full force and effect.
WHAT IF MY SPOUSE VIOLATES THE PRELIMINARY INJUNCTION?
If either spouse violates the Preliminary Injunction he or she may be found in contempt of a court order. In my family law practice, this comes up most often when one spouse unilaterally decides he or she wants to sell some piece of property or tries to hide money. Keep in mind, that if both parties agree in writing to do something with a community asset (for example, if both parties agree to split the proceeds in a savings account so each has some money to live on while the divorce is pending) it is not a violation of the Preliminary Injunction. Likewise, if one party wants to do something with an asset and cannot get the other party to agree, he or she is free to file a motion with the family court judge requesting that the court order that the asset be divided or sold or whatever the party is seeking. After the other spouse files his or her response to the request, the family court judge will decide to either allow the party to sell or divide the asset or to wait until the case is decided at trial.
Where most people get in trouble when it comes to the Preliminary Injunctions is when they something with a community asset without the permission of the other spouse or without a court order. When a party unilaterally disposes of a community asset, he or she may be in direct violation of the Preliminary Injunction. A couple of years ago I had a case where the parties had a substantial 401K through the husband’s employer. The 401K was a community asset that needed to be divided equally. The soon-to-be ex-husband unilaterally decided he was going to use the 401K funds for his own purposes, including my client’s half of the funds. When we found out about husband’s actions, we filed a Motion for Contempt with the family court judge. After hearing the evidence, the family court judge found that husband violated the preliminary injunction and, as a sanction for violating the Preliminary Injunction, ordered that he pay my client’s attorney fees. The judge also entered a judgment against the husband for my client’s half of the funds.
Make no mistake; Arizona family court judges take the preliminary injunction very seriously. The idea behind the injunction is to force the parties to play fair and to prevent one party from disposing of community assets for his or her own purposes. You will note that the injunction also applies to conduct involving minor children. A violation of any of the restrictions enumerated in the Preliminary Injunction can be expensive and can result in significant sanctions from the family law judge.
If you find yourself involved in an Arizona divorce, make sure you dui attorney mesa az before doing anything with any community assets or taking actions involving minor children (such as taking them out of state, etc.). It is never a good idea to take things into your own hands without the written permission from either your spouse or the family law court. Failure to follow the orders contained in the Preliminary Injunction can be costly and damage your credibility with the family law judge.
I read an interesting article the other day about a man named Corey Curtis in Wisconsin. Mr. Curtis is the father of nine children with six different mothers. According to the news article, Mr. Curtis owes almost $100,000 in back child support. The fact that Mr. Curtis has multiple children by multiple women and is not paying child support is not what made this story newsworthy. What made this article interesting is that the family court judge, exasperated by Mr. Curtis’ failure to take responsibility for his children by paying his child support, ordered, as a condition of his probation, that he not procreate until he can demonstrate to the court that he can provide for his children. Under Wisconsin law, this type of legal restriction is permissible.
The problem with deadbeat parents is a nationwide problem, including in Arizona. Here in Maricopa County, Sheriff Joe Arpaio conducts an annual deadbeat parent roundup. These sweeps are aimed locating and arresting parents (usually fathers) who are not providing court ordered financial support for their children. Sheriff Arpaio points out that the purpose of his “Operation Don’t Be a Deadbeat” roundups is to send a message to parents to pay their child support. This is one of Sheriff Joe’s programs I can support.
The failure for a parent to pay child support can impact all of us. According to a 2011 Census Bureau Report, more than $35 billion dollars in child support was owed nationally in 2009. Among the more than 6.9 million custodial parents who were awarded child support in 2009, only 41.2% received the amount that was due. 29.2% of custodial parents nationwide received none of the child support money they were due. The lack of payment to support these children naturally results in the need for more government programs to assist single parents who do not get consistent support. Other government resources, such as courts and child support enforcement agencies spend millions each year to track down deadbeat parents.
In my experience as an Arizona family law attorney practicing in Mesa and the East Valley, the best strategy to enforce the non-payment of child support is to be aggressive and consistent. State and federal laws make it a crime to not pay child support. Too many single parents, mostly mothers, simply do not have the ability or resources to try to enforce child support orders. One good resource in Arizona is to contact the child support enforcement division of the Arizona Department of Economic Security. AZDES has many resources to assist in the enforcement of child support orders. Among the remedies available to AZDES is to seize assets of a non-paying parent, placing liens on property, intercepting lottery winnings, suspension and revocation of drivers’ licenses and reporting non-payment to credit bureaus.
Another option is to hire an experienced Arizona family law attorney to file a child support enforcement petition and/or motion for contempt. An enforcement or contempt action is brought before a family court judge, usually the judge that handled the original divorce. The process includes filing a petition and serving it on the non-paying party. The court then sets an Order to Show Cause hearing and requires the non-paying parent to come into court and explain why he or she is delinquent in paying their child support obligation. The court can impose any number of remedies under Arizona law, incluidng garnishment, attachment, liens, etc. Status conferences on frequently set so the court can continue to track the progress of the non-paying parent. More significant remedies can be imposed, incluidng jail and criminal charges for failure to pay child support. I frequently hear some individuals threaten to file bankruptcy on back-child support. This is an idle threat because child support is non-dischargeable in bankruptcy court. A child support arreage never goes away and just keeps accruing interest for years and years to come.
Any parent that is owed back child support should take agressive measures to enforce the child support order. Making a non-paying parent stand before a judge and explain his or her failure to take care of his or her children is an uncomfortable thing for most parents. In many cases it is not a matter of ability to pay, it is a matter of motivation. With the proper motivation, many deadbeat parents begin working on the delinquency. Non-payment of child support is a serious matter with serious consequences that effect all of us. The answer to non-payment is not often going to be a court order prohibiting procreation (although it is not a bad idea). A better answer is more accountability and consequences. Agressively enforcing your child support order with court action may be all the motivation your ex needs to do the right thing.